288 F.

3d 1215

Robert Grady JOHNSON, Petitioner-Appellant,

v.
Ron CHAMPION, Respondent-Appellee.
No. 01-6183.

United States Court of Appeals, Tenth Circuit.

April 26, 2002.

COPYRIGHT MATERIAL OMITTED Michael J. Barta and Kelli C.

McTaggart, Baker Botts L.L.P., Washington, DC, on the brief for
Petitioner-Appellant.
W.A. Drew Edmondson, Attorney General of Oklahoma, and Diane L.
Slayton, Assistant Attorney General, Oklahoma City, OK, on the brief for
Respondent-Appellee.
Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.

Petitioner Robert Grady Johnson, an Oklahoma state prisoner serving four

consecutive life sentences for four counts of first degree felony murder, appeals
the district court's dismissal of his 28 U.S.C. 2254 habeas petition. We
exercise jurisdiction pursuant to 28 U.S.C. 1291, reverse the judgment of the
district court, and remand with instructions to grant conditional habeas relief to
Johnson.

I.
2

On December 14, 1984, during a robbery at the First Bank of Chattanooga in

Geronimo, Oklahoma, three bank employees and one bank customer were
killed. Three other bank customers were shot and severely wounded, and there
was an unsuccessful attempt to shoot an infant girl. Johnson and Jay Wesley
Neill were arrested and charged with the offenses in the District Court of
Comanche County, Oklahoma. Johnson and Neill were tried together in May
1985 and each was convicted of four counts of first degree murder, three counts

of shooting with intent to kill, and one count of attempted shooting with intent
to kill. The jury recommended death sentences for Johnson and Neill on each of
the murder counts. On direct appeal, the Oklahoma Court of Criminal Appeals
(OCCA) reversed the convictions and sentences and remanded the cases for
new trials, concluding that Johnson and Neill were improperly tried together
because Johnson's and Neill's defenses were mutually antagonistic each
defendant asserted the other was solely responsible for commission of the
offenses. Neill v. State, 827 P.2d 884, 887-88 (Okla.Crim.App. 1992).
3

In 1993, Johnson was separately retried and convicted of the same eight crimes.
He was sentenced to four life sentences without parole on the murder counts,
three twenty-year sentences on the shooting with intent to kill counts, and a tenyear sentence on the attempted shooting count, with all sentences to be served
consecutively. The trial court entered judgment on July 28, 1993.

On August 5, 1993, Johnson's trial counsel filed a notice of intent to appeal and
a designation of record in the state district court. An attorney employed by the
Oklahoma Indigent Defense System (OIDS) was appointed to represent
Johnson on appeal. On October 26, 1993, the attorney filed a petition in error
on Johnson's behalf with the OCCA. Another OIDS attorney was appointed to
represent Johnson after the first attorney withdrew.

After the filing of Johnson's petition in error, the OCCA granted the court
reporter three sixty-day extensions to file the trial transcripts (under Oklahoma
law, the filing of the trial transcripts triggered the deadline for a criminal
defendant to file his or her appellate brief). The third extension was granted
after a show cause hearing on January 12, 1994, attended by the court reporter
and Johnson's counsel. On March 15 and 17, 1994, the court reporter filed the
trial transcripts with the OCCA. According to Johnson, a notice of the filing
was sent to the attorney general's office, but not to Johnson's counsel.

Approximately seven months passed after the filing of the transcripts without
the filing of an appellate brief on Johnson's behalf. On October 19, 1994, the
OCCA, acting sua sponte, entered an order dismissing Johnson's appeal for
failure to comply with Rule 3.4 of the Rules of the Court of Criminal Appeals.1

On November 17, 1994, Johnson's counsel filed with the OCCA a motion to
reinstate the appeal. Counsel claimed that a notice of completion of the
transcripts had not been filed with the OCCA, and thus the sixty-day time
period for filing a brief had not started. On December 29, 1994, the OCCA
denied the motion to reinstate the appeal, finding that "[t]he transcripts were

filed with the Clerk of this Court on March 15, 1994 and March 17, 1994, and
the court reporter filed a notice of completion with the Clerk of this Court on
March 17, 1994." App. at 326. The OCCA further noted that, under its rules, it
was Johnson's attorney's responsibility "to ensure the records necessary for
commencing the appeal [we]re completed and filed in a timely manner." Id.
The OCCA concluded that "the only remedy available to [Johnson] upon
dismissal of his appeal [wa]s to obtain an appeal out of time" by first filing an
application for post-conviction relief in state district court and "requesting an
appeal out of time." Id. at 326-27.
8

On April 13, 1995, Johnson's counsel requested a "recommendation for a late

appeal" from the state district court Id. at 329. The request stated that Johnson's
appeal was dismissed "[b]ecause of a misunderstanding as to when the
appellate brief was due." Id. The request was denied on June 20, 1995.

On or about August 16, 1995, Johnson's counsel filed an application for appeal
out of time. The OCCA denied the application on September 15, 1995, noting
that the application "set[ ] forth no facts to support" the contentions that
Johnson "always desired to appeal his conviction," "never consented to the
abandonment of the appeal," and "ha[d] been denied an appeal through no fault
of his own." Id. at 334. The OCCA again emphasized that "the proper
procedure [wa]s to file an application for post-conviction relief in [state]
District Court requesting an appeal out of time." Id. The OCCA further
emphasized that the granting of such relief would depend upon Johnson's
"ability to prove he was denied an appeal through no fault of his own." Id.

10

On October 16, 1995, Johnson's counsel filed an application for postconviction relief in state district court asserting that Johnson "still desire[d] to
appeal his conviction and ha[d] never agreed to abandon his appeal." Id. at 53.
The application further stated that Johnson's counsel "acknowledge[d] that the
appeal was dismissed for failure to file a brief, and through no fault" of
Johnson. Id. The state district court denied the application on December 29,
1995, concluding that Johnson had "failed to substantiate any sufficient reason
... for his failure to file a direct appeal," and had likewise "failed to substantiate
any sufficient evidence that [his] counsel's conduct fell outside the wide range
of reasonable professional assistance." Id. at 55. The court further concluded
that Johnson had "failed to show that counsel's performance was deficient, that
is, that ... counsel's errors were so serious that counsel was not functioning as
the `counsel' guaranteed by the Sixth Amendment," or "that any such deficient
performance resulted in a trial in which result was not reliable." Id. at 55-56.
The state district court "denie[d] the ... Application ... in regard to the
proposition of ineffective assistance of counsel." Id. at 56.

11

Johnson appealed the denial of his application for post-conviction relief. He

asserted generally that "[a] criminal defendant is entitled to effective assistance
of counsel on first appeal as of right and he is entitled to appeal out of time
when denied effective assistance of counsel to perfect direct appeal." Id. at 46.
Johnson then asserted, as he had in state district court, that his original appeal
was dismissed due to his attorney's "failure to file a brief, and through no fault
of" his own. Id. at 45. More specifically, Johnson alleged that "the failure to file
the brief was through a misunderstanding [on the part of his counsel] as to
when the brief was due." Id. at 47. On April 4, 1996, the OCCA remanded the
case to state district court with directions to conduct an evidentiary hearing to
determine (1) whether Johnson's "appeal was not timely perfected because of
appellate counsel"; (2) "if so, whether [Johnson] was any part of the problem";
and (3) whether Johnson "ha[d] been denied an appeal through no fault of his
own." Id. at 37.

12

The state district court conducted an evidentiary hearing on June 25, 1996.
After hearing brief testimony from Johnson, the court found that Johnson's
appeal was not timely perfected "because of appellate counsel" (presumably
meaning that appellate counsel was negligent in failing to timely file a brief).
Id. at 374. The court also found that Johnson "contributed to the negligence
involved in failing to timely perfect his appeal." Id. at 375. In support of this
finding, the court noted that (a) Johnson had "previously been convicted on two
separate occasions and had been advised twice of his rights to appeal, including
the time limits on appeal," id. at 374-75, (b) Johnson had written at least two
letters to the state district court and had thus "shown the ability to communicate
and inquire as to his status with th[e] Court," id. at 375, and (c) Johnson "made
no inquiry of this Court or the Court of Criminal Appeals about the status of his
appeal" during the time period from March 17, 1994 (when the court reporter
filed the transcripts with the OCCA) and October 17, 1994 (when the OCCA
dismissed the appeal). Id. The court concluded that all of these factors were
"circumstantial evidence from which [it] c[ould] conclude that there was an
intent by [Johnson] and/or his counsel to abandon this appeal," and that the
statements of Johnson and his counsel to the contrary were "not sufficient ... to
overcome the enormous time lapse which [it] f[ou]nd indicate[d] that the
appeal was abandoned." Id. at 376. The state district court concluded by
addressing Johnson and his counsel directly:

13

Mr. Johnson, you've not met [your] burden. Your mere words alone are not
sufficient for this Court to overlook the tremendous amount of time that went
by between the date of the deadline and the date of any actual filing in this
case. This case is I've been on the bench 14 years and this case has been
pending for 12 of them. I think you recall we started this case together and now

it's 12 years later and we're still doing this. You know, enough is enough at
some point.
14

And, [counsel], I don't quite I quite frankly don't know what to say to you. I
know that the people who we work for don't expect perfection in this criminal
justice system, no do they get it very often, but I do think they expect some
accountability and some finality in these criminal cases and this case is a poor
example of the accountability and finality in the criminal justice system, and
I'm not going to be a rubber stamp and allow this sort of thing to go on in this
case. I know I can't cure that statewide and by the letter that I got from you
early in this case, apparently this is a very common practice, but in this case it's
not going to happen. If the Court of Criminal Appeals tells me that I have to
grant this defendant an appeal out of time, then I'll respect that and abide by it.

15

But based on the history of this case, the overwhelming evidence of guilt in this
matter, the findings that I've made today, the defendant is denied his request for
appeal out of time.

16

Id. at 376-77.

17

Shortly after the evidentiary hearing, the state district court issued a written
order concluding, in pertinent part, that "[n]either [Johnson] nor his appellate
Counsel ha[d] acted with reasonable diligence and both ha[d] now caused,
intentionally, in this Court's opinion, over two years of unnecessary and
inexcusable delay in the appellate history of this case." Id. at 39. More
specifically, the court concluded that Johnson's "inaction [wa]s consistent with
abandonment of his appeal." Id. Accordingly, the court concluded that Johnson
"ha[d] delayed the appellate issues in this case for an unnecessary length of
time and ha[d] therefore forfeited his right to raise these issues in a postconviction proceeding." Id. at 40.

18

Johnson appealed to the OCCA, arguing that the evidence established he was
denied an appeal through no fault of his own. In connection with this argument,
Johnson asserted that the state district court's "finding of contributory
negligence [on his part] [wa]s supported by neither law or evidence." Id. at 341.
According to Johnson, "the law impose[d] no duty on a defendant, as opposed
to his attorney, to see that his appeal [wa]s filed on time." Id. Johnson noted the
rules of the OCCA "forbid a defendant from filing any pro se brief or legal
argument if ... represented by counsel." Id. The OCCA denied relief on
December 2, 1996. Its order recited in detail the state district court's findings of
fact and conclusions of law and concluded that the record failed to establish

"that the District Court erred in its findings and conclusions denying [Johnson]
post-conviction relief." Id. at 358. Although the order acknowledged that
OCCA rules generally prohibited "any pro se legal arguments," it nevertheless
concluded that the rule did "not prohibit any appellant who [wa]s represented
by counsel from seeking extraordinary relief in the District Court or in [the
OCCA] when it is apparent the appeal is in jeopardy because of counsel's
failure to act in a timely manner." Id. Therefore, Johnson had "failed to
establish that he was denied an appeal of his conviction through no fault of his
own." Id.
19

On January 15, 1997, Johnson, appearing pro se (having lost the right to courtappointed counsel), filed a petition for federal habeas relief asserting that he
had been denied the right to appeal his convictions. The magistrate court issued
a written report on January 15, 1998, recommending that the writ be granted.
The magistrate construed Johnson's petition as "alleg[ing] the denial of due
process based on the ineffective assistance of counsel in failing to perfect his
direct appeal." Id. at 79-80. The magistrate noted it was undisputed that
Johnson's claim "was raised and addressed on the merits by both the state
district court and the [OCCA]." Id. at 83. As for the merits of the claim, the
magistrate concluded that "counsel's failure to perfect [Johnson's] direct appeal
violated [Johnson's] constitutional right to effective assistance of counsel." Id.
at 86. More specifically, the magistrate noted that Johnson's "[a]ppointed
counsel ha[d] continually conceded that [Johnson] ha[d] been denied an appeal
based on counsel's own failure to perfect the appeal by timely filing an
appellate brief," and that "[n]othing in the record suggest[ed] that the failure to
file a timely brief was due to any action or inaction by [Johnson]." Id. at 88-89.
As for the state courts' conclusion that Johnson was partly responsible, the
magistrate concluded that "[i]n light of the relevant Supreme Court law
regarding [Johnson's] federal constitutional right to effective counsel on appeal,
... the reasoning of the state courts that [Johnson] had abandoned his appeal is
so clearly incorrect that it would not be debatable among reasonable jurists." Id.
at 89.

20

Respondent objected to the magistrate's report and recommendation, arguing

that Johnson's petition "did not allege a denial of due process or ineffective
assistance of counsel," id. at 92, and that, in any event, Johnson had never
presented these constitutional claims to the Oklahoma state courts for review.
The district court issued a written order on April 23, 1998, concluding that
Johnson had "failed to exhaust his state court remedies regarding the
constitutional claim at issue here [i.e., ineffective assistance of counsel]." Id. at
126. The court's order dismissed Johnson's petition without prejudice "so that
[Johnson could] present his constitutional claim ... to the state courts." Id.

21

On or about May 27, 1998, Johnson, continuing to appear pro se, filed a second
application for state post-conviction relief asserting, in pertinent part, that his
appellate counsel had been ineffective for failing to timely file an appellate
brief. On June 26, 1998, the state district court denied Johnson's application,
concluding

22

as it did on July 1, 1996, that [Johnson] ha[d] engaged in a deliberate and

intentional course of conduct designed to delay final judgment of the
convictions in this case, and further that this delay is an extreme injustice to the
State of Oklahoma and particularly to the victim's families, who have now been
required to endure almost fourteen years without a final result to this case.

23

Id. at 262. The court further concluded the application should be dismissed
because it "raise[d] issues which were or could have been raised in his first
application for post conviction relief and since this Court has previously
conducted an evidentiary hearing and specially found that [Johnson] was not
denied a direct appeal of his convictions through no fault of his own." Id. A
"true and correct" copy (but apparently not a certified copy) of the state district
court's order was mailed by the court clerk to Johnson via certified mail. Id.

24

On July 8, 1998, Johnson filed a notice of intent to appeal and designation of

record with the state district court clerk. On July 23, 1998, Johnson filed with
the OCCA a petition in error and supporting brief. Johnson failed, however, to
include with his petition in error a certified copy of the state district court's
order, as required by Rule 5.2(C)(2) of the Rules of the Court of Criminal
Appeals.2 According to Johnson, he was never in possession of a certified copy
of the state district court's order.

25

On September 21, 1998, the OCCA declined jurisdiction over the appeal. The
OCCA noted that Johnson had failed to submit with his petition in error and
supporting brief a certified copy of the state district court's order. The OCCA
further noted that a copy of the state district court's order was not otherwise
included in the record on appeal since the clerk of the state district court had
not filed a post-conviction appeal record with the clerk of the OCCA. The
OCCA concluded that Johnson "ha[d] not provided a sufficient record for
review." Id. at 264. Approximately one week later, on September 28, 1998, the
clerk of the state district court submitted to the OCCA a "Notice of
Completion" and, presumably, certified copies of the record on appeal. Id. at
180. There is no indication in the record, however, that Johnson received notice
of this event. On October 8, 1998, Johnson filed with the OCCA a notice of
intent to appeal (to federal district court) and a request that the clerk of the
OCCA designate the record to federal district court.

26

On October 19, 1998, Johnson again filed a pro se petition for federal habeas
relief. Johnson asserted, as he did in his first habeas petition, that he received
constitutionally ineffective assistance of appellate counsel and was denied his
due process right to a direct appeal. Johnson also asserted a due process
violation arising out of the state district court clerk's failure to transmit certified
copies of the record to the OCCA when he attempted to appeal the denial of his
second application for post-conviction relief.

27

The magistrate court issued its report on November 23, 1999, recommending
that the petition be denied. With respect to the ineffective assistance of counsel
claim, the report concluded the issue was not raised in Johnson's first
application for post-conviction relief, and that instead the first application "was
directed solely to the issue of whether [he] was denied an appeal through no
fault of his own." Id. at 389. The report acknowledged that the issue was raised
in Johnson's second application for post-conviction relief, but concluded that
the OCCA's declination of jurisdiction of the appeal in that proceeding resulted
in a procedural bar for purposes of federal habeas review. The report rejected
Johnson's assertion that the state district court clerk's failure to timely transmit
the record to the OCCA established cause for the procedural default. Instead,
the report concluded, Johnson himself was responsible for the OCCA's ruling
by failing to submit with his petition in error a certified copy of the state district
court's order. The report also rejected Johnson's reliance on the fundamental
miscarriage of justice exception, i.e., Johnson's assertion that he was actually
innocent of the crimes for which he was convicted. The report noted that the
"only factual support" provided by Johnson in support of his assertion was an
"unsupported, nonspecific reference to the `FBI plac[ing] him 16 miles from
the scene of the crime.'" Id. at 391-92. On May 14, 2001, the district court
adopted the magistrate's report and recommendation in its entirety and
dismissed Johnson's habeas petition. Although the district court denied a
certificate of appealability (COA), this court has granted a COA.

II.
28

Johnson contends the district court erred in concluding that his Sixth
Amendment claim of ineffective assistance of appellate counsel was
procedurally barred. For the reasons that follow, we agree. Moreover, we
conclude the claim is meritorious and entitles Johnson to conditional habeas
relief.

29

It is well established that our review of federal habeas claims asserted by state
prisoners is circumscribed by the treatment those claims received in state court.
If a particular claim was decided on the merits by the state courts, we review

the decision under the standards of review set forth in 28 U.S.C. 2254(d). If a
particular claim was "defaulted in state court on an independent and adequate
state procedural ground," we recognize the state courts' procedural bar ruling
and do not address the claim on the merits "unless cause and prejudice or a
fundamental miscarriage of justice is shown." Maes v. Thomas, 46 F.3d 979,
985 (10th Cir.1995).
30

Here, the district court concluded that Johnson's ineffective assistance claim
was procedurally barred. In reaching this conclusion, the district court found, as
it had in dismissing Johnson's first federal habeas petition, that Johnson's
ineffective assistance claim was not raised in his first application for postconviction relief. Instead, the district court found the claim was first raised by
Johnson in his second application for post-conviction relief (which, as
previously noted, was filed by Johnson after dismissal of his first federal
habeas petition). Noting that the OCCA had declined jurisdiction over
Johnson's appeal from the denial of his second application for post-conviction
relief, the district court concluded Johnson's ineffective assistance claim was
procedurally barred, and that Johnson had failed to establish either cause and
prejudice or a fundamental miscarriage of justice.

31

Johnson presents numerous challenges to the district court's decision. We begin

with the most fundamental challenge did the district court err in concluding
that Johnson's ineffective assistance claim was not fairly presented to the
OCCA during the course of his initial application for post-conviction relief?

Claim raised in initial application for post-conviction relief

32

To exhaust state court remedies with respect to a particular constitutional claim,

a habeas petitioner must give the state courts a fair opportunity to address the
claim. See Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d
380 (1989). "The determination or showing of exhaustion of state remedies is
an essential issue or question of fact to be determined by the [district] court as a
prerequisite to a consideration of the petition on its merits." Barber v. Page, 355
F.2d 171, 172 (10th Cir.1966). Here, Johnson contends the district court erred
in finding that the ineffective assistance claim was not raised in his first
application for post-conviction relief.

33

Johnson's first application for post-conviction relief asserted that he should be

granted an appeal out of time because the failure to timely file an appellate brief
rested exclusively on the shoulders of his appellate counsel. Although the
application did not specifically cite Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Johnson's counsel all but conceded that

he was ineffective. See App. at 53 ("His appellate attorney acknowledges that

the appeal was dismissed for failure to file a brief, and through no fault of
petitioner."). In reviewing the application, the state district court construed it as
asserting a claim of ineffective assistance. Thus, in denying the application, the
court specifically found that Johnson had "failed to substantiate any sufficient
evidence that [his] counsel's conduct fell outside the wide range of reasonable
professional assistance." Id. at 55. The state district court further concluded that
Johnson had "failed to show that counsel's performance was deficient, that is,
that the counsel's errors were so serious that counsel was not functioning as the
`counsel' guaranteed by the Sixth Amendment." Id. When Johnson appealed the
order to the OCCA, he asserted, in pertinent part, that "[a] criminal defendant is
entitled to effective assistance of counsel on first appeal as of right and ... is
entitled to appeal out of time when denied effective assistance of counsel to
perfect direct appeal." Id. at 46. In remanding the case to state district court, the
OCCA directed the court to conduct an evidentiary hearing to determine, in
part, whether Johnson's "appeal was not timely perfected because of appellate
counsel." Id. at 37. On remand, the state district court conducted a brief
evidentiary hearing and found that appellate counsel was at least partly
responsible for the failure to timely file an appellate brief. Id. at 374 ("In regard
to number one, whether the appeal was not timely perfected because of
appellate counsel. That is certainly borne out by the evidence and I think
admitted and agreed to by all parties."). Despite this finding, the court denied
relief based upon its additional finding that Johnson himself had "contributed to
the negligence involved in failing to timely perfect his appeal." Id. at 375.
When Johnson again appealed to the OCCA, he argued, in part, that "the law
impose[d] no duty on a defendant, as opposed to his attorney, to see that his
appeal [wa]s filed on time." Id. at 341. The OCCA ultimately affirmed the state
district court's judgment, concluding Johnson had "failed to establish that he
was denied an appeal of his conviction through no fault of his own." Id. at 358.
34

Although it is true that "appeal out of time" proceedings in Oklahoma focus on

whether a defendant was denied an appeal "through no fault of his own," it is
apparent that claims of ineffective assistance are sometimes intertwined with
the "fault" question and can be decided on the merits in the course of such
proceedings. In at least two published cases, the OCCA has considered, and in
one of them granted, an appeal out of time based on the denial of effective
assistance of appellate counsel. See Paxton v. State, 903 P.2d 325, 327-28
(Okla.Crim.App.1995) (denying, on basis of laches, petitioner's request for
appeal out of time based on denial of effective assistance of appellate counsel);
Young v. State, 902 P.2d 1089, 1091 (Okla.Crim.App. 1994) (granting
petitioner's request for appeal out of time based on appellate counsel's failure to
file any pleadings on petitioner's behalf). Moreover, the OCCA has expressly

stated that its "appeal out of time" procedure allows a trial court "to resolve
factual disputes concerning why an appeal was not timely filed." Moore v.
Gibson, 27 P.3d 483, 487 (Okla.Crim.App. 2001).
35

In light of the procedural history of Johnson's first application for postconviction relief, and in light of Oklahoma precedent, we conclude the district
court committed clear error in finding that Johnson did not exhaust his
ineffective assistance claim during the course of pursuing his first application
for post-conviction relief. Although the OCCA's final affirmance focused on
Johnson's purported "fault," the issue of appellate counsel's performance in
failing to timely file an appellate brief was fairly presented to the OCCA, both
in the initial appeal and again in the second appeal. The state district court's
denial of Johnson's application, and the OCCA's affirmance of that denial,
necessarily included an evaluation of Johnson's assertion that his appellate
counsel was at fault and constitutionally ineffective in failing to timely file an
appellate brief. In sum, it is clear from the record that Johnson exhausted his
ineffective assistance claim prior to filing his initial federal habeas petition.

36

We acknowledge that Johnson did not attempt to appeal from the federal district
court's dismissal of his initial habeas petition. That failure does not, however,
preclude us from examining the exhaustion question and determining when and
whether the OCCA addressed Johnson's ineffective assistance claim. The
general rule is that "res judicata has no application in [federal] habeas corpus"
proceedings. Calderon v. United States Dist. Ct., 163 F.3d 530, 537 (9th
Cir.1998) (en banc); see McCleskey v. Zant, 499 U.S. 467, 480, 111 S.Ct. 1454,
113 L.Ed.2d 517 (1991) (noting long-standing rule "that res judicata does not
apply to a decision on habeas corpus refusing to discharge the prisoner")
(internal quotations omitted). Even ignoring this general rule, the district court's
order dismissing Johnson's first habeas petition was without prejudice and
therefore has no res judicata effect. See Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Nor is the district
court's finding binding on this court under the law of the case doctrine
(assuming that Johnson's first and second habeas petitions can be considered
the "same case" for purposes of that doctrine). Under the law of the case
doctrine, "a court should not reopen issues decided in earlier stages of the same
litigation." Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 138 L.Ed.2d
391 (1997). Whether the "law of the case" doctrine applies to questions of fact,
such as whether a particular claim for federal habeas relief has been exhausted,
see Barber, 355 F.2d at 172, is unclear. See United States v. Monsisvais, 946
F.2d 114, 115 n. 2 (10th Cir.1991) (declining to "address under what
circumstances findings of fact become the law of the case"). Assuming for
purposes of argument that the doctrine generally applies to findings of fact, a

court is not bound by the doctrine if it is "convinced that [a finding] is clearly

erroneous and would work a manifest injustice." Arizona v. California, 460
U.S. 605, 618 n. 8, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). That is precisely
the situation here. The federal district court's initial finding that the ineffective
assistance claim was unexhausted was clearly erroneous, and adhering to that
finding would work a manifest injustice by forcing Johnson to establish why
this court should not adhere to the OCCA's rejection of his second, and entirely
unnecessary, application for post-conviction relief on state procedural grounds.
37

We find that Johnson's ineffective assistance claim was fairly presented to the
OCCA in the course of his first application for post-conviction relief and was
implicitly rejected by the OCCA on the merits. The outcome of his second
application for post-conviction relief (i.e., the OCCA's declination of
jurisdiction based upon Johnson's failure to file a certified copy of the state
district court's order) is irrelevant to this proceeding. In other words, because
the OCCA had a full and fair opportunity to address the merits of the
ineffective assistance claim in the course of Johnson's first application for postconviction relief, it does not matter that a procedural default may have occurred
when Johnson again attempted to assert that claim in state court.

No procedural bar
38

Even if we assumed that Johnson's ineffective assistance claim was not raised
until his second application for post-conviction relief, we would still conclude
the claim should be reviewed on the merits. As previously noted, the district
court concluded that Johnson's ineffective assistance claim was procedurally
barred due to Johnson's failure, in attempting to appeal the state district court's
denial of his second application for post-conviction relief, to include with his
petition in error a certified copy of the state district court's order. Johnson
argues that even if there was a valid procedural default, it should be excused
under the "cause and prejudice" exception. We agree.

39

Generally speaking, this court "does not address issues that have been defaulted
in state court on an independent and adequate state procedural ground, unless
the petitioner can demonstrate cause and prejudice or a fundamental
miscarriage of justice."3 English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998)
(citing Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991)). "`[C]ause' under the cause and prejudice test must be
something external to the petitioner, something that cannot fairly be attributed
to him." Coleman, 501 U.S. at 753, 111 S.Ct. 2546; see Murray v. Carrier, 477
U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (indicating the "cause"
standard requires a petitioner to "show that some objective factor external to the

defense impeded ... efforts to comply with the State's procedural rules"). Such
external factors could, for example, include situations where "some interference
by officials... made compliance impracticable." Id. (internal quotations and
citation omitted). As for prejudice, a petitioner must show "`actual prejudice'
resulting from the errors of which he complains." United States v. Frady, 456
U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). More specifically, a
petitioner must demonstrate "actual prejudice resulting from the alleged
constitutional violation." Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497,
53 L.Ed.2d 594 (1977).
40

Johnson argues that "cause" exists in this case for three related reasons. First,
Johnson alleges the copy of the state district court's order mailed to him by the
clerk was not certified. Johnson argues that, in light of Rule 5.2(C)'s
requirement of a certified copy, "it is not unreasonable to expect that the copy
of the order forwarded to [him] in the first instance be certified." Johnson's
Opening Br. at 20. Second, Johnson alleges he "lacked reasonable means
within the state's thirty-day deadline of obtaining the certified copy that was
not given to him in the first instance." Id. at 21. In particular, he argues "[h]e
could not rely on a request by mail, in light of the unavoidable delays involved
in multiple back-and-forth postal deliveries, prison mail-processing, and clerk's
office processing, in light of the [OCCA's] thirty-day deadline, and in light of
that Court's refusal to extend the benefits of the `mailbox rule' to postconviction filings." Id. Third, Johnson points out that even though he expressly
petitioned the state district court clerk to transmit the record, including the state
district court's order, to the OCCA, the clerk failed to transmit the record within
the time limits set forth in the OCCA's rules. Johnson argues that certain
language in the OCCA's order declining jurisdiction suggests it may have
addressed the appeal on the merits had the clerk timely transmitted the record.

41

The first two factors cited by Johnson, the clerk's failure to mail him a certified
copy of the court's order and the difficulties he faced in obtaining such a copy
within a tight time-frame, are compelling in our view. To comply with Rule
5.2(C), an appellant is obligated to obtain a certified copy of the district court
order from which he or she is seeking to appeal. If Johnson had received a
certified copy of the order in the first place,4 he clearly could have complied
with Rule 5.2(C) in a timely fashion. Although it can be argued that Johnson
could have, and perhaps should have, attempted to contact the clerk to obtain a
certified copy of the order, he was operating within a relatively narrow window
of time, considering the fact that he was incarcerated and that the OCCA does
not recognize any type of "mailbox rule" for pro se inmate litigants. Thus, we
conclude that the failure of the clerk to provide him with a certified copy made
compliance with Rule 5.2(C) practically impossible.5 See Dorman v.

Wainwright, 798 F.2d 1358, 1370 (11th Cir.1986) (concluding that "state's
failure to provide [petitioner] with a trial transcript within a reasonable time to
perfect his appeal constitute[d] an external factor out of [petitioner's] control
that suffice[d] as `cause' for the dismissal of the direct appeal").
42

We conclude that the third factor cited by Johnson, the clerk's failure to timely
transmit the record to the OCCA, also constitutes "cause" for the procedural
default. It is uncontroverted that Johnson filed a timely notice of appeal and
designation of record with the state district court clerk. Under the Rules of the
Court of Criminal Appeals, this action imposed a duty on the clerk to compile
certified copies of the record and submit them to the OCCA within thirty days
of the state district court's order. Okla. Stat. tit. 22, Ch. 18 App. Rule 5.3(B)(1)
(2002). Had the clerk fulfilled this statutory responsibility, the OCCA would
have been in possession of a certified copy of the state district court's order at
the time it ruled on Johnson's appeal. Although there still would not have been
precise compliance with Rule 5.2(C) (in that a certified copy of the order would
not have been physically attached to Johnson's petition in error), there would
have been practical compliance (in that a certified copy of the decision
appealed would have been available to the OCCA). The OCCA order declining
jurisdiction over Johnson's appeal contains language which suggests the OCCA
may have accepted jurisdiction had the record been available to the court. See
App. at 264 (noting that "[a] copy of the order from the District Court of
Comanche County is not part of the record on appeal," and that "[t]he Clerk of
the District Court has not filed a post-conviction appeal record in this Court").

43

As for the question of prejudice, it is clear that Johnson can demonstrate "actual
prejudice resulting from the alleged constitutional violation." Wainwright, 433
U.S. at 84, 97 S.Ct. 2497. The basis for Johnson's ineffective assistance claim
is his assertion that his appellate counsel was negligent for failing to timely file
an appellate brief. Assuming appellate counsel was negligent in this regard, the
result is that Johnson was deprived of his right to a direct appeal. See Abels v.
Kaiser, 913 F.2d 821, 823 (10th Cir.1990) (concluding that counsel is
constitutionally ineffective by failing to timely perfect an appeal when
requested to do so by his client, and presuming prejudice under such
circumstances). Clearly, this constitutes "actual prejudice" for purposes of
federal habeas review. See id.

Merits of ineffective assistance claim

44

The question we must next address is whether to remand the case to the district
court to allow it to address the merits of Johnson's ineffective assistance claim,
or whether we should address the claim ourselves. The general rule is "that a

federal appellate court does not consider an issue not passed upon below."
Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).
This general rule gives way, however, "where the proper resolution is beyond
any doubt," or "where injustice might otherwise result." Id. at 121, 96 S.Ct.
2868 (internal quotations omitted). In our view, both exceptions are applicable
here.
45

It is uncontroverted that Johnson's appellate counsel was negligent in failing to

timely file an appellate brief. Not only did counsel repeatedly acknowledge his
own negligence during the course of the state post-conviction proceedings, the
state district court ultimately agreed that Johnson's appellate counsel was
negligent (even though it rejected Johnson's application for post-conviction
relief). Although the court found, and the OCCA agreed, that Johnson had
intentionally abandoned his direct appeal by failing to contact either the state
district court or the OCCA regarding the status of his appeal during the sevenmonth time period between the filing of the trial transcripts and the dismissal of
the appeal by the OCCA, we conclude this was "an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding[s]."
28 U.S.C. 2254(d)(2). During the brief evidentiary hearing conducted by the
state district court, Johnson testified that he had always wanted to appeal his
convictions and had relayed that desire to his appellate counsel. Johnson further
testified that he was not aware of the deadline for filing the appellate brief until
it had passed and he was curious why his appellate counsel had failed to meet
the deadline. Finally, Johnson testified that, to his knowledge, he had not done
anything that would have resulted in dismissal of his appeal. In our view,
Johnson's testimony clearly and convincingly demonstrates that the state district
court's finding of abandonment was erroneous. See 28 U.S.C. 2254(e)(1). For
the state district court to infer that Johnson intended to abandon his appeal,
based merely on the fact that he did not personally contact the courts regarding
the status of his appeal during a seven-month period, is not only completely
contrary to Johnson's testimony but entirely inconsistent with fundamental
notions of due process. See generally Evitts v. Lucey, 469 U.S. 387, 396, 105
S.Ct. 830, 83 L.Ed.2d 821 (1985) (explaining why the intricacies of criminal
appellate proceedings, which would be "hopelessly forbidding" to a layperson,
demand that a criminal defendant have the assistance of counsel on appeal).

46

As for the applicable law, it is beyond dispute that a criminal defendant is

entitled to the effective assistance of counsel in his first appeal as a matter of
right. Evitts, 469 U.S. at 396-97, 105 S.Ct. 830.

47

In bringing an appeal as of right from his conviction, a criminal defendant is

attempting to demonstrate that the conviction, with its consequent drastic loss

of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face

an adversary proceeding that like a trial is governed by intricate rules
which to a layperson would be hopelessly forbidding. An unrepresented
appellant like an unrepresented defendant at trial is unable to protect the
vital interests at stake.
48

Id. at 396, 105 S.Ct. 830.

49

Where, as here, appellate counsel negligently fails to perfect an appeal,

counsel's failure necessarily constitutes ineffective assistance. See Evitts, 469
U.S. at 397, 105 S.Ct. 830 (affirming lower courts' determination that appellate
counsel was ineffective for failing to perfect direct appeal by filing "statement
of appeal" as required by Kentucky law); Abels, 913 F.2d at 823 (concluding
that appellate counsel's failure to file appellate brief on behalf of client "was a
violation of [the client's] constitutional right to effective assistance of counsel");
Hannon v. Maschner, 845 F.2d 1553, 1558-59 (10th Cir.1988) (concluding that
appellate counsel's failure to perfect direct appeal would result in deprivation of
defendant's right to effective assistance of counsel unless defendant knowingly
and intelligently waived right to appeal). More specifically, the negligent
failure to perfect an appeal "amount[s] to a complete denial of assistance of
counsel during a critical stage" of the criminal proceedings. United States ex
rel. Thomas v. O'Leary, 856 F.2d 1011, 1017 (7th Cir.1988); see Evitts, 469
U.S. at 394 n. 6, 105 S.Ct. 830 (stating it is "difficult to distinguish" the
situation of a criminal defendant whose appellate counsel fails to perfect a
direct appeal "from that of someone who had no counsel at all").

50

Prejudice is presumed in circumstances such as those presented here. See

Hannon, 845 F.2d at 1558; see also United States v. Cronic, 466 U.S. 648, 659,
104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ("The presumption that counsel's
assistance is essential requires us to conclude that a trial is unfair if the accused
is denied counsel at a critical stage of his trial."); Thomas, 856 F.2d at 1016
(holding that Strickland's prejudice inquiry is inapplicable in cases where
appellate counsel failed to perfect direct appeal). As we noted in Abels, "when
courts have found counsel constitutionally inadequate, because ... counsel failed
to properly perfect an appeal, they do not consider the merits of arguments that
the defendant might have made on appeal." 913 F.2d at 823. The rationale for
this position was outlined by the Supreme Court over thirty years ago: "Those
whose right to appeal has been frustrated should be treated exactly like any
other appellants; they should not be given an additional hurdle to clear just
because their rights were violated at some earlier stage in the proceedings."
Rodriquez v. United States, 395 U.S. 327, 330, 89 S.Ct. 1715, 23 L.Ed.2d 340
(1969).

51

The only remaining question is the relief to which Johnson is entitled. Prior
precedent indicates that the appropriate relief in these circumstances is to
remand to the district court with directions to grant a writ of habeas corpus
ordering the petitioner's release unless state authorities afford him an appeal out
of time. E.g., Evitts, 469 U.S. at 390-91, 105 S.Ct. 830; Myers v. Johnson, 76
F.3d 1330, 1339 (5th Cir.1996); Baker v. Kaiser, 929 F.2d 1495, 1500-01 (10th
Cir.1991); Abels, 913 F.2d at 823. 6

III.
52

The judgment of the district court is REVERSED and the case is

REMANDED. The district court is directed that the case be held in abeyance
for no longer than ninety days during which time the State of Oklahoma, by
whatever procedure it deems appropriate, may grant Johnson leave to appeal
out of time and provide him assistance of counsel. If Oklahoma grants leave to
appeal out of time, this proceeding shall be dismissed. If the State fails to grant
the appeal within ninety days from the date of the issuance of our mandate, the
writ shall issue releasing Johnson.

53

Johnson's motion to supplement the record is GRANTED.

Notes:
1

At that time, Rule 3.4 provided, in pertinent part, that "[u]nless otherwise
ordered ..., the appellant's brief must be filed within sixty (60) days from the
date the appeal is perfected by the filing of the petition in error, the certified
copy of the original record, and an original and one (1) copy of the transcript."
Okla. Stat. tit. 22, Ch. 18 App. Rule 3.4(B) (1986)

Rule 5.2(C)(2) states, in pertinent part, that "[a] petition in error and supporting
brief, WITH A CERTIFIED COPY OF THE ORDER ATTACHED must be
filed with the Clerk of this Court." Okla. Stat. tit. 22, Ch. 18 App. Rule 5.2(C)
(2) (2002 Supp.). This version of Rule 5.2(C) became effective on January 1,
1998

There is little doubt that the OCCA's declination of jurisdiction rested on a state
law ground "independent" of federal law. In particular, the OCCA's decision
rested on Rule 5.2(C) of the Rules of the Court of Criminal Appeals. As
previously noted, that Rule states, in pertinent part, that "[a] petition in error
and supporting brief, WITH A CERTIFIED COPY OF THE ORDER
ATTACHED must be filed with the Clerk of this Court." Okla. Stat. tit. 22, Ch.

18 App. Rule 5.2(C)(2) (2002 Supp.) (emphasis in original). The Rule further
provides that the "[f]ailure to file a petition in error, with a brief, within the time
period provided, shall constitute a procedural bar for this Court to consider the
appeal."Id. Rule 5.2(C)(5).
Although Johnson contends otherwise, we conclude the ground is also
"adequate." See Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir.1998); see
also Cotner v. Creek County Dist. Ct., 911 P.2d 1215, 1217
(Okla.Crim.App.1996) (declining jurisdiction over appeal from denial of
application for post-conviction relief because district court order submitted
with petition in error was "not certified as required by Rule 5.2(C)(1)").
4

Rule 5.3(A) of the Rules of the Court of Criminal Appeals requires the clerk of
the state district court to mail "a certified copy" of the state district court's order
to the petitioner. Although the State half-heartedly argues that the copy sent to
Johnson must have been certified, Resp. Br. at 14, it makes no attempt to
support this argument with any evidence. In response, Johnson points out that
the copy he received from the clerk did not contain any type of certification
stamp. Aplt. Reply Br. at 10

Respondent suggests Johnson should have included the non-certified copy of

the order he received from the clerk with his petition in error and supporting
brief. Clearly, however, that would not have been acceptable under the OCCA's
rules. Indeed, the OCCA's decision inCotner suggests the OCCA likely would
have declined jurisdiction due to Johnson's failure to include a certified copy of
the order as required by Rule 5.2(C).

Because we conclude that Johnson's ineffective assistance of counsel claim is

meritorious and entitles him to federal habeas relief, we find it unnecessary to
address his due process claim